Citation Nr: 1301254
Decision Date: 01/11/13 Archive Date: 01/16/13
DOCKET NO. 07-26 870 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to service connection for right foot pes planus with Achilles tendonitis, to include as secondary to service-connected left foot and ankle disabilities.
2. Entitlement to service connection for lumbosacral degenerative changes, to include as secondary to service-connected left foot and ankle disabilities.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and his wife
ATTORNEY FOR THE BOARD
Debbie A. Breitbeil, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from June 1997 to June 2001.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for a bilateral foot disability to include the Achilles tendon and for a back disability.
In a July 2007 RO decision review officer decision, service connection was granted for left foot pes planus with Achilles tendonitis and for myofascial strain of the lumbosacral paraspinal muscles. As the decision with regard to the lumbosacral strain was considered only a partial grant of benefits sought on appeal, the RO continued the issue of service connection for lumbosacral degenerative changes on appeal.
The Veteran and his wife testified at a hearing at the RO before a decision review officer in January 2007.
FINDING OF FACT
In January 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that the Veteran intended to withdraw his appeal seeking service connection for right foot pes planus with Achilles tendonitis, to include as secondary to service-connected left foot and ankle disabilities, and for lumbosacral degenerative changes, to include as secondary to service-connected left foot and ankle disabilities; there is no question of fact or law remaining before the Board in this matter.
CONCLUSION OF LAW
Regarding the claims of entitlement to service connection for right foot pes planus with Achilles tendonitis, to include as secondary to service-connected left foot and ankle disabilities, and for lumbosacral degenerative changes, to include as secondary to service-connected left foot and ankle disabilities, the criteria for withdrawal of an appeal by the Veteran have been met; the Board has no further jurisdiction in this matter. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Although the VCAA applies to the instant claim, further discussion of the impact of the VCAA is not necessary in light of the Veteran's expression of intent to withdraw his appeal in the matter.
B. Legal Criteria, Factual Background, and Analysis
The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204.
In a statement dated and received by the Board in January 2013, the Veteran's representative indicated that it was the intent of the Veteran to withdraw his appeal seeking service connection for right foot pes planus with Achilles tendonitis, to include as secondary to service-connected left foot and ankle disabilities, and for lumbosacral degenerative changes, to include as secondary to service-connected left foot and ankle disabilities. Hence, there is no allegation of error or fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed.
ORDER
The appeal seeking service connection for right foot pes planus with Achilles tendonitis, to include as secondary to service-connected left foot and ankle disabilities, and for lumbosacral degenerative changes, to include as secondary to service-connected left foot and ankle disabilities, is dismissed.
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George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs